Charles Gordon Spencer, Officiating C.J.
1. This is a suit to recover possession of certain lands. The parties are Muhammadans. It is necessary to make this clear at the outset, because in dealing with the parties contentions in the Courts below, there has been some confusion of mind caused by reference to self-acquired property and even to stridhanam (see paragraph 27 of the District Munsiff's Judgment in O.S. No. 38 of 1915).
2. The plaintiffs are the widow and children of Sheik Muhammad Bava Rowther. Sheik Muhammad Rowther had one brother, who is the 1st defendant, and four sisters. There has been previous litigation on the subject of the suit property. Sheik Muhammad Rowther brought a suit O.S. No. 15 of 1905, to recover the same lands from the 1st defendant on a plea of trespass in which he alleged that the properties were in plaintiffs' possession but that it was necessary to have them delivered to him through Court to avoid any further dispute. The defendant took oath in that case and the plaintiff's suit was dismissed. Another suit O.S. No. 38 of 1915, was brought by the daughters of Isabibi Ammal, one of the sisters of Sheik Muhammad, and the 1st defendant. That suit was dismissed on a finding that the property was the exclusive property of Sheik Muhammad.
3. Both the Courts below have held that the result of the second suit was to negative the right of the sisters of any share of the property and to enhance the shares of Sheik Muhammad and the first defendant. The plaintiffs have been given a preliminary decree for partition of the suit properties into two equal shares. I am of opinion that both the judgments are wrong. This suit does not purport to be a suit for partition of property between co-owners. The cause of action is stated to be the claim of the 1st defendant in O.S. No. 38 of 1915 to absolute right in the suit property, and the relief asked for is that the plaintiffs' 6/8ths share should be made over to them. It is not alleged that the plaintiffs have obtained possession of the property at any date subsequent to the 10th of November, 1905 when the 1st suit (O.S. No. 15 of 1905) for possession of this property was dismissed and that they have since been dispossessed. As regards the plaintiffs' title to sole possession of the property, the decision in O.S. No. 15 of 1905 is res judicata as between them and the defendant Muhammed Esuf. The mere assertion of title in O.S. No. 38 of 1915 by a co-defendant will not give rise to any cause of action if the property was at that time in the defendant's possession. The present suit, if it be regarded as a suit to obtain possession against a trespasser, is barred by reason of the prior suit, O.S. No. 15 of 1905 upon the same title--[vide Muhammad Rowther v. Abdul Rahman Rowther ILR (1922) M 135.] If it to be alleged that in the prior litigation the plaintiff asked for too much and therefore his suit was dismissed and that his representatives are now at least entitled to 6/8ths or some other smaller share of the property, then they are equally barred, because Sheik Muhammad should have pleaded in that suit that, if he was not entitled to a decree for the whole property, he should at least be given a decree for his 6/8ths share. That principle is clearly established by the decision just quoted.
4. It is argued that the effect of the judgment in O.S. No. 15 of 1905 was destroyed by the judgment in the subsequent suit, O.S. No. 38 of 1915, in which it was held that the property was the exclusive property of Sheik Muhammad. That is not so. The judgment in O.S. No. 38 of 1915, disposed of a claim made by the daughters of one of Sheik Muhammad's sisters to their share of this property upon partition. The finding that it was the exclusive property of Sheik Muhammad will not operate as res judicata between co-defendants, as there was no active contest between them on this point and the decision of the question was not necessary in order to dispose of the suit of those plaintiffs-vide Sankaramahalingham Chetti v. Muthulakshmi : AIR1918Mad39 . If the present suit is to be treated as a suit for partition of Sheik Muhammad's share, then it is necessary that the plaint should be amended by properly stating the cause of action as the plaintiffs' demand for a partition to be made by their co-owner and his refusal. It will also be necessary to make all the members of the family parties to the suit. One of the sisters of Isa Bivi, Jaleika Bivi, is stated to be dead. The other two sisters Hamida Bivi and Muhammad Bivi are parties in the connected suit for recovery of the house, O.S. No. 511 of 1918 but they have not been made parties to the present suit; nor has any one been put on the record as the legal representative of the deceased sister. The only order that I can make on the present second appeal is that upon the plaintiffs paying all the costs of the defendants up to date within one month, they will be allowed to amend their plaint so as to claim the relief of partition of their share making all the children of Muhammad Bava or their legal representatives parties to the suit within one month of this order, and upon their so doing, the suit will be remanded for retrial permitting the defendants to file fresh written statements to meet the plaintiffs' new claim for partition; and upon the plaintiffs' failure to do so, their suit will stand dismissed with costs in this Court and in the Courts below reversing the decisions of the District Munsiff and the Subordinate Judge. This order also disposes of the memorandum of objections which is dismissed.